On Media

Pundits: Court divided, 'groping'

To some pundits and reporters, the justices’ questions and comments during Tuesday’s oral arguments about California’s Proposition 8 gave the impression that a sharply divided Supreme Court may not be ready to issue any sweeping ruling on same-sex marriage.

CNN’s Jeffrey Toobin — who noted that he’s “now not in the business of making predictions” — said the court was “deeply divided” and appeared to “almost be groping for an answer” on California’s gay marriage ban.

“I am now not in the business of making predictions, but I think it is even harder to predict the result of this case after hearing this argument,” he said. “Certainly, it was clear that Justice Scalia, Justice Alito and almost certainly Chief Justice Roberts were very hostile to the idea of the court imposing same-sex marriage. It is quite clear too that the liberal justices, the four Democrats, seemed favorably disposed.”

Court watchers know that the questions the justices ask don’t necessarily mean anything — they often can’t be read as a sign of the court. A year ago, a number of pundits incorrectly predicted President Barack Obama’s healthcare act would be struck down based on oral arguments. Toobin, for example, said Obamacare looked like it would be “struck down” and called the hearings a “train wreck for the Obama administration.”

“I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” he said at the time.

A few months later, when the Supreme Court announced it had voted to uphold the act, Toobin had to tell CNN viewers it was “a day for me to eat a bit of crow.”

On Tuesday, Toobin pointed out that Justice Anthony Kennedy made comments “that would give comfort to both sides.”

“He did not seem anxious to even resolving this case. He suggested a couple of times that perhaps this whole issue was premature,” Toobin told CNN viewers. “So Kennedy did not seem to be seeking out the role that the court has presented to him, but it does seem to present to him the option to decide this case. And that’s a brief summary.”